Fair Use Illustrated in Appropriation Art

Copyright protects the creative expression of an idea, but never the idea itself. Copying ideas is always allowed, but copying expression is generally prohibited. However, copying expression will still be allowed if the copy is fair use. Exploring some copyright and appropriation art cases can help solidify these nebulous concepts.

Fair use comes up in many types of copyright cases, but “appropriation art” cases are often the most interesting. In appropriation art cases, some creative expression has been copied, but the copying will not be infringement if the new art transforms the original. If the secondary use adds value to the original–if the quoted matter is used as raw material, transformed in the creation of new information, new aesthetics, new insights and understandings—then it’s type of activity that the fair use doctrine protects for the enrichment of society. Toward a Fair Use Standard, Pierre Leval.

Copyright law doesn’t give us clear-cut rules like “using less than 10% of an original is fair use” or “copying less than 8 seconds of video is OK.” The actual fair use rules are subjective and imprecise. Reviewing some examples can help give you a feel for the rules.


Fair Use: Sorry for Partying

“Sorry for Partying” is an easy win for fair use. “The photograph was posterized, the background was removed, and Soglin’s face was turned lime green and surrounded by multi-colored writing… almost none of the copyrighted work remained.” Kienitz v. Sconnie Nation (7th Cir. 2014).

Sorry for Partying was fair use because it used only a sliver of the original photo. However, fair use isn’t just about the amount of art copied. Fair use weighs four central factors: (1) is the copy transformative or non-commercial? (2) Was the original work factual or creative? (3) How much was copied? (4) Does the copy harm the market for the original work?

Keep these questions in mind as you look at the next images.

Fair Use: Parody for a Movie Poster

Photoshopping Leslie Nielsen’s face onto the famous photo of a pregnant Demi Moore was fair use as a parody, despite being a commercial movie poster:

Plainly, the [Nielsen photo] adds something new and qualifies as a “transformative” work. … Because the smirking face of Nielsen contrasts so strikingly with the serious expression on the face of Moore, the ad may reasonably be perceived as commenting on the seriousness, even the pretentiousness, of the original. Leibovitz v. Paramount, 137 F.3d 109 (2d Cir. 1998).

While the commercial nature of a new work tends to weigh against fair use, a transformative work weighs in favor of fair use, and often with more force. Now let’s look at another case involving movie posters: the monster movie art of Basil Gogos.

Fair Use in Famous Monsters

Spurlock copied plaintiff’s “Famous Monsters” magazine covers without modification. They are even closer copies than the Naked Gun poster above. They’re still fair use, but this time for a different reason. The copies of Gogos’ art are not parodies or appropriation - they are copies for criticism and biography.

Basil Gogos created significant and highly detailed art. The purpose of his art was to promote movies and sell magazines. The copies were made for “an entirely different purpose” - a biography of Gogos the artist. Defendant’s copies pay homage to Gogos’ artistic accomplishments. “The book also provides commentary from many respected individuals in the movie monster industry who attest to the quality of the work and his lasting legacy.” The copies were fair use. Warren Publishing v. Spurlock, 645 F.Supp.2d 402 (EDPA 2009).

Infringement: Blue Puppies

The Jeff Koons sculpture (right) infringed the original Art Rogers photo (left). It was not fair use. The Koons work had a commercial purpose (he sold it for $376,000), it copied from an artistic (rather than factual) source, and Koons copied nearly every detail of the original. Koons’ argued that his sculpture was satire that criticized societies’ fascination with mass-produced commodities, and should therefore be considered fair use. The Judge disagreed, deciding that copying an artists’ work to criticize society at large was not fair use — to be fair use the copy must criticize the original work. Rogers v. Koons 960 F.2d 301 (2d Cir. 1992).

Note that this rule was overturned in Cariou v. Prince 714 F.3d 694 (2d Cir. 2013), “The law imposes no requirement that a work comment on the original or its author in order to be considered transformative…”.

No Infringement: Mountain Lion Statue

A mountain lion statue was not infringing a very similar photograph. This is not a case about fair use. The sculpture was not transformative. Both the original photo and the sculpture shared the same artistic intent - to display the protective nature of a mother mountain lion. However, the sculpture only copied the non-protectable elements of a mother mountain lion carrying her cub. According to the court, these were elements found in nature rather than elements resulting from the original photographer’s creative expression:

In this case, however, all of the similarities in expression between the two works at issue consist of unprotectable elements or themes that flow predictably from the underlying subject matter. Dyer v. Napier (D. Ariz, 2006).

Fair Use: Collage of Advertisements

Photographer Andrea Blanch took the original photo (left) and published it in Allure Magazine. Jeff Koons used the photo in his “Niagara” painting (right). A New York court decided the Koons painting was transformative because:

The use of a fashion photograph created for publication in a glossy American “lifestyles” magazine — with changes of its colors, the background against which it is portrayed, the medium, the size of the objects pictured, the objects details and, crucially, their entirely different purpose and meaning — as part of a massive painting commissioned for exhibition in an art-gallery space. Blanch v. Koons (2d Cir. 2006).

Cariou v. Prince Lightning Round

This case involved 30 works of Richard Prince’s art, each using different amounts of Cariou’s original photography. The appeals court decided 25 were clearly fair use, and 5 were too close to call. Cariou v. Prince, 714 F.3d 694 (2d Cir. 2013). Let’s look at some examples:

Fair Use:

Close Call:

Fair Use:

Close Call:

The appeals court sent the five “close call” works back to the trial court for further analysis, but Cariou v. Prince settled out of court before the fair use issue was decided.

Infringement: Quilt Briefly Decorates TV Set

Showing a quilt in the background of a sitcom for 27 seconds was not fair use. The quilt was a highly creative work, and its appearance in the sitcom, though brief, was not transformative. The purpose of the original quilt was to decorate and depict African-American church culture. The purpose of the duplication was to decorate an African-American church set in a TV show. Ringgold v. BET 126 F.3d 70 (2d Cir. 1997).

Infringement: Mayor McCheese

Mayor McCheese infringed H.R. PufinStuf. The court noted that “the ‘Living Island’ locale of Pufnstuf and ‘McDonaldland’ are both imaginary worlds inhabited by anthromorphic plants and animals and other fanciful creatures… The characters are also similar. Both lands are governed by mayors who have disproportionately large round heads dominated by long wide mouths.” Krofft v. McDonalds, 562 F.2d 1157 (9th Cir. 1977).

McDonalds tried to avoid copyright infringement by highlighting some trifling details differentiating McCheese from PufinStuf. It didn’t work:

We do not believe that the ordinary reasonable person… will even notice that Pufnstuf is wearing a cummerbund while Mayor McCheese is wearing a diplomat’s sash. Krofft v. McDonalds.

I’m not sure why the case looks at the cummerbund while ignoring the fact that MAYOR MCCHEESE’S HEAD IS A GIANT HAMBURGER.